APPLICATION for an
order for interim maintenance pending appeal. Application dismissed.

Simon Lahaie, for the applicant.

George Artinian, for the respondent.

The following is
the order delivered by

1 Sopinka
J. ‑‑ The appellant (applicant) applies for an order under
s. 65.1 of the Supreme Court Act, R.S.C., 1985, c. S-26, and Rule 27 for
an order in the nature of interim maintenance pending appeal. Leave to appeal
herein has been granted. The appeal is from the judgment of the Court of
Appeal of Quebec (J.E. 93-880 (sub nom. Droit de la famille--1783))
which reduced support payments that were ordered by Kennedy J. of the Quebec
Superior Court and which Benoit J. of the Quebec Superior Court refused to
vary. It is the order of Benoit J. which was appealed to the Court of Appeal.

2 The application was made
returnable before me as Rota Judge, but on return of the motion, counsel for
the respondent questioned the jurisdiction of a judge to deal with this
application which he submitted should be dealt with by the Court.

3 I adjourned the application to
permit the respondent to cross-examine on an affidavit filed by the applicant
and invited written submissions on jurisdiction. After I had the benefit of
written submissions and oral argument on the issue, I concluded that I have
jurisdiction to deal with the matter.

4 The foundation of the
application is s. 65.1 and Rule 27. Section 65.1 of the Supreme Court Act
was enacted in order to enable a single judge to exercise the jurisdiction
which previously was exercised by the Court with respect to stays of
proceedings. This includes the powers in Rule 27. Accordingly, if
jurisdiction exists to make the order requested under either s. 65.1 or Rule
27, a judge of the Court has the jurisdiction to make it.

5 With respect to the merits of
the application, the applicant is requesting an order for maintenance on the same
basis as provided in the judgment of Benoit J. which was varied by the Court of
Appeal reducing the payments in favour of the applicant and eliminating the
payment in favour of their son F. The latter had ceased to live with his
mother and was living with his father at the relevant time.

6 An appeal to this Court does not
result in a suspension of the judgment appealed from. Although execution of
the judgment by a third party is stayed in the circumstances specified in s. 65
(see Keable v. Attorney General of Canada, [1978] 2 S.C.R. 135), a party
seeking to suspend the operation of the judgment on appeal in other
circumstances must resort to s. 65.1 and Rule 27. This the applicant has done.

7 The applicant is in effect
asking for an order for maintenance pending appeal which is equivalent to the
maintenance which was ordered at trial and which Benoit J. refused to vary.

8 While an order for maintenance
preceding appeal may be possible under s. 65.1 and Rule 27, it would be made in
exceptional circumstances. Although orders for interim maintenance are
commonplace pending trial, their necessity pending appeal is less obvious.
After a court of first instance has already assessed the case, including the
needs of the party claiming maintenance, there is less reason for the
intervention of the appellate court before the appeal has been disposed of. A
fortiori, when two courts, a court of first instance and a court of appeal,
have passed upon the matter, it would require a very substantial change of
circumstances before this Court would grant an order for interim maintenance
pending appeal. No substantial change of circumstances was relied on here and
I find none. Consequently, no order for interim maintenance pending appeal
should be made here. The application is, therefore, dismissed with costs.

Application
dismissed with costs.

Solicitors for the
applicant: Alarie, Legault & Associés, Montreal.

Solicitors for the
respondent: Martineau, Walker, Montreal.

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